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Disclosure under Rule 70

18. […] [Paragraph (B) of Rule 70] prevents the disclosure of information provided to the Prosecutor on a confidential basis where that information has been used solely for the purposes of generating new evidence, without the consent of the provider. It was designed to encourage States and others (such as humanitarian organisations operating in the relevant territory) to assist the Prosecution (or, under paragraph (F) of the Rule, the Defence). The provider must consent before this information may be disclosed any further – by being presented in evidence or otherwise. If the information is to be disclosed in evidence, it must be disclosed to the accused in accordance with Rule 66, as paragraph (B) provides.[1] […]

19. The purpose of Rule 70(B) to (G) is to encourage States, organisations, and individuals to share sensitive information with the Tribunal. The Rule creates an incentive for such cooperation by permitting the sharing of information on a confidential basis and by guaranteeing information providers that the confidentiality of the information they offer and of the information’s sources will be protected.[2] As Trial Chamber I explained several years ago, “the exceptions to disclosure in Sub-rules 70(B) to (E) were introduced into the rules to permit the use, as and when appropriate, of certain information which, in the absence of explicit provisions, would either not have been provided to the Prosecutor or have been unusable on account of its confidential nature or its origin.”[3] As another Trial Chamber has observed, without such guarantees of confidentiality, it is “almost impossible to envisage this Tribunal, of which the Prosecution is an integral organ, being able to fulfil its functions.”[4]

20. The phrases “information under this Rule” and “testimony, document or other material so provided” in paragraph (C),[5] and “information provided under this Rule” in paragraph (D),[6] are intended to relate back to the “information which has been provided” referred to in paragraph (B).[7] […] Paragraphs (C) and (D) deal with the situation where the provider has already given its consent to the information being disclosed further, by being presented in evidence in one form or another. By definition, the information is by this stage no longer being “used solely for the purpose of generating new evidence”. It becomes a matter of necessary textual interpretation, therefore, that the information referred to in paragraphs (C) and (D) must be that which was provided to the Prosecutor on a confidential basis […], and not that which was so provided and which has been used solely for the purpose of generating new evidence […]. […]

21. The Trial Chamber […] impermissibly introduced a requirement into Rule 70 that the sole purpose of providing the information was to generate new evidence, whereas paragraph (B) speaks only of the material having been used solely for that purpose. No doubt the purpose of providing information on a confidential basis will in many cases include a purpose (sole or otherwise) that new evidence will thereby be generated, but the limitations imposed by Rule 70(B) are not based upon the existence of such state of mind on the part of the provider.

[…]

23. The fact that information is provided in the form of testimony does not exclude it from being “information” or “initial information” provided under the Rule. Indeed, paragraph (C) of the Rule expressly refers to the “testimony, document, or other material so provided.” (emphasis added). […] When a person possessing important knowledge is made available to the Prosecutor on a confidential basis, not only the informant’s identity and the general subject of his knowledge constitute the “information” shielded by Rule 70, but also the substance of the information shared by the person – often, as in this case, presented in summary form in a witness statement.

[…]

25. All that Rule 70 requires is that the information “was provided to the Prosecutor on a confidential basis.” As mentioned in paragraph 20 supra, for purposes of paragraph (B), the information must also be “used solely for the purpose of generating new evidence,” but for paragraphs (C) and (D) that requirement necessarily drops out, for once the information is introduced as evidence at trial, it by definition is no longer “used solely for the purpose of generating new evidence.”

26. […] The Appeals Chamber observes that two safeguards exist to ensure that any misuse does not deprive accused persons of their rights to challenge the evidence against them and to receive a fair trial.[8] First, as explained more fully below in section D.2, the Trial Chambers do possess a limited authority to police the application of Rule 70 in order to prevent its misapplication. Second, paragraph (G) of Rule 70 expressly empowers the Trial Chambers to “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.” Designed to ensure that the restrictions in paragraphs (C) and (D) do not undermine the bedrock requirement of fair trial when the Rule is properly invoked, paragraph (G) also gives Trial Chambers a tool to protect that requirement if the Rule has been misused.

[…]

29. […] Chambers of the Tribunal do indeed have the authority to assess whether information has been provided in accordance with Rule 70(B) and so benefits from the protections afforded by that Rule. However, such enquiry must be of a very limited nature: it only extends to an examination of whether the information was in fact provided on a confidential basis, bearing in mind that the providing of information may not be confined to a single act, but may consist of a process involving several acts. This is an objective test. The Chambers may be satisfied of this simply by a consideration of the information itself, or by the mere assertion of the Prosecutor, or they may require confirmation from the information provider or, where the information is in the form of a document, for example, there may be something on the face of the document which indicates that it was indeed provided on a confidential basis.

[…]

31. […] Where […] there is any doubt upon the face of the material placed before a Trial Chamber when the protections of Rule 70 are sought, the Trial Chamber should invite the party which provided the information and the Prosecutor to supply evidence upon these issues before ruling upon the application of Rule 70 to the information in question. The Trial Chamber should give the information provider an opportunity to be heard on the question by filing written submissions, but need not allow additional oral submissions by the information provider unless the Trial Chamber determines that the interests of justice so require.

[5] “[…] after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided […].”

[6] “[…] introduce in evidence any information provided under this Rule, […].”

[7] “[…] the Prosecutor is in possession of information which has been provided […].”

9. […] The Appeals Chamber considers that there is no indication in Rule 70 that the rule applies only to the pre-appeal stage in a case. By its nature, the material envisaged in Rule 70 (C), and therefore necessarily in Rule 70, may arise at the pre-trial, trial, or appeal stage. The Appeals Chamber considers, therefore, that the expression of “non-public material which falls under Rule 70 (C)” applies to material falling under Rule 70 and introduced into the proceedings at all stages of the case, including the appeal.

6. If Rule 70(F), however, is read in the context of Rule 70 as a whole it becomes apparent that the Trial Chamber erred in adopting such a strict interpretation of Rule 70(F). Under Rule 70(B), information obtained by the Prosecution on a confidential basis is automatically subject to the confidentiality protection of Rule 70. Thus, when requesting a third party to provide it with confidential information the Prosecution can, at that time, guarantee to the provider that the confidentiality of the information will be protected. Rule 70(F) provides that, upon application by the Defence, the provisions of Rule 70 that apply to the Prosecution shall apply mutatis mutandis to “specific information in the possession of the accused”. If the protection accorded to the Prosecution is to apply mutatis mutandis to the Defence, Rule 70(F) falls to be interpreted as enabling the Defence to request a Trial Chamber that it be permitted to give the same undertaking as the Prosecution to a prospective provider of confidential material that that material will be protected if disclosed to the Defence. The purpose of Rule 70(F) is to encourage third parties to provide confidential information to the Defence in the same way as Rule 70(B) encourages parties to do the same for the Prosecution[1], regardless of any further disclosure of that confidential information.

7. Read within the context of the Rule therefore, and with its purpose in mind, the reference of Rule 70(F) to “specific information in the possession of an accused” is not a condition of the making of an order that the Rule applies; it is a reference to what the Rule will apply to after the making of an order that it is to apply. The circumstance that the accused is not now in possession of such information is therefore not pertinent.

[1] See generally Prosecutor v Slobodan Milošević, Case No IT-02-54-AR108bis & AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 October 2003, para 19.

Pp. 5-6: CONSIDERING that “material provided under Rule 70 shall not be released to the Accused in another case unless the provider consents to such disclosure”;[1]

CONSIDERING that “[t]he purpose of Rule 70(B) to (G) is to encourage States, organizations, and individuals to share sensitive information with the Tribunal […] by permitting the sharing of information on a confidential basis and by guaranteeing information providers that the confidentiality of the information they offer and of the information’s sources will be protected”[2] and that, “[w]hen a person possessing important knowledge is made available […] on a confidential basis, not only the informant’s identity and the general subject of his knowledge constitute the ‘information’ shielded by Rule 70, but also the substance of the information shared by the person”;[3]

FINDING therefore that neither the material provided under Rule 70 to either the Prosecution or the Defence in a case nor its sources may be released to the accused in another case prior to obtaining consent from the provider of that information and that this holding does not depend upon whether or not that material was used as evidence in a previous case;